Dwyer v Police - [2005] SASC 31

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DWYER v POLICE
Judgment of The Honourable Justice Bleby
28 January 2005
CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS - PUBLIC PLACE, STREET OR THOROUGHFARE AND PLACE OF PUBLIC RESORT
Appeal against convictions for driving under influence of alcohol and driving without due care – s 47 and s 45 Road Traffic Act 1961 – Alleged offences occurred on privately owned unsealed access road – Whether access road a “road” for purposes of Act – Interpretation of s 5 Road Traffic Act 1961 – Whether road “used by” public – Whether road “open to” public – Weight to be placed on physical barrier – Not a “road” for the purposes of Act – Appeal allowed – Convictions set aside
Road Traffic Act 1961 (SA) s 5, s 5A, s 45, s 47, s 175(1), referred to.
Evans v Benson (1986) 46 SASR 317; Harrison v Hill [1932] SC (J) 13; Schubert v Lee (1946) 71 CLR 589; Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd [1982] 1 NSWLR 728; Marklew v Allen (1974) 9 SASR 32, applied.
McBain v Reyne (1998) 69 SASR 580, discussed.
Warren v Coombes (1979) 142 CLR 531, considered.

DWYER v POLICE
[2005] SASC 31
Magistrates Appeal

BLEBY J: The appellant was charged on complaint with four offences as follows:
1.On the 27^th day of July 2003 at Montacute in the said State, drove a vehicle namely a motor vehicle on a road namely an access road whilst he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the said vehicle. Section 47 of the Road Traffic Act, 1961.
2.On the 27^th day of July 2003 at Montacute in the said State, drove a motor vehicle on a road namely an access road whilst there was present in his blood the prescribed concentration of alcohol as defined in Section 47a of the Road Traffic Act, 1961. Section 47b of the Road Traffic Act, 1961. It is further alleged that the concentration of alcohol was 0.78 [sic] grams in a hundred millilitres of blood.
3.On the 27^th day of July 2003 at Montacute in the said State drove a vehicle namely a motor vehicle on a road namely an access road without due care. Section 45 of the Road Traffic Act, 1961.
4.On the 27^th day of July 2003 at Montacute in the said State, resisted Michael Cawthorne a police officer in the execution of his duty. Section 6(2) of the Summary Offences Act, 1953.
He pleaded not guilty to all of them. At the close of the prosecution case count 2 was dismissed by the Magistrate. After hearing evidence led by the appellant the Magistrate found him guilty of counts 1, 3 and 4. On count 1 the Magistrate imposed a fine of $700 and disqualified the appellant from holding or obtaining a driver’s licence for 12 months. On each of counts 3 and 4 the appellant was fined $50. He now appeals against the convictions on counts 1 and 3.
The grounds of appeal do not relate to the manner of driving of the appellant on the occasion in question. He did not seek to argue against the finding that he drove a vehicle whilst so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the vehicle, nor did he seek to argue against the finding that he drove without due care. His grounds of appeal relate to the finding of the Magistrate that at the relevant time he was driving the vehicle on a road. It is therefore not necessary to relate the circumstances as to how the appellant was driving at the time or how he came to be apprehended by the police, save to note that the appellant had requested the police to attend the premises consequent upon a domestic disturbance involving the appellant and his wife.
Neither s 47 nor s 45 of the Road Traffic Act, being the sections in question giving rise to the convictions, make any mention, relevantly, of driving a vehicle on a road. However, s 5A of the Road Traffic Act provides:
“This Act applies to vehicles and drivers, riders, passengers and pedestrians on roads.”
It was therefore necessary for prosecution to establish that the appellant was driving on a “road”. In that regard the prosecution had the assistance of s 175(1) of the Road Traffic Act which relevantly provides that an allegation in a complaint that a specified place was a road is proof of the matter so alleged “in the absence of proof to the contrary”. In Evans v Benson (1986) 46 SASR 317 it was established that in similar circumstances the onus is on the defendant to prove to the contrary on the balance of probabilities: see King CJ at 323-324, Jacobs, Bollen and Olsson JJ agreeing. It was therefore necessary for the appellant in this case to prove on the balance of probabilities that the access road concerned was not a “road” for the purposes of the Road Traffic Act.
In s 5 of the Act “road” is defined as meaning “an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving of motor vehicles”. That definition was inserted in the Act in 1999 in substitution for an earlier definition which defined “road” as being:
“(a)A road, street or thoroughfare; and
(b)Any other place commonly used by the public or to which the public are permitted to have access.”
Therefore, cases decided upon that definition will be of limited assistance and must be read with some care when considering the present definition.
The access road in question was an unsealed access road, about 1.7 km in length, leading from Montacute Road, Montacute, a public road, to several houses and farm buildings some distance from Montacute Road. The land on which the road was formed was owned by a Mr Perugini. He maintained the road. He conducted an orchard business on the land. From photographs tendered at the trial it appears that the land was fenced along the Montacute Road boundary. At the time of the alleged offence there was a gate mounted at the access point but it was generally left open except for three weeks in the year during the fruit picking season. During that period the gate was closed and locked at the end of each working day until the beginning of the next day. Otherwise, the gate remained open at all times.
Photographs of the entrance taken shortly before the trial were tendered, but Mr Perugini explained that the gate had been removed at that time to allow earthworks to be carried out on the property which, among other things, had the effect of changing the appearance and nature of the entrance. The photographs indicated a sign “Lot 51” attached to a tree near the entrance. There was some suggestion, but the evidence was far from clear, that other signs were in place at the time indicating also Lots 52 and 53. However, there were no signs prohibiting or discouraging entry to the access road by members of the public.
The road provided access from Montacute Road to Mr Perugini’s farm buildings and two houses erected on his land, one of which was occupied by the appellant and his family. The road also provided access to a third house, being that of a neighbour on other land adjoining Mr Perugini’s land.
The evidence showed that the access road was used generally by occupants of the houses which it served and their invitees, by workers in the orchard, by tradespersons attending the property for the purpose of making deliveries or involved in the acquisition of produce from the property and occasionally by members of the public who wandered onto the property and who, when noticed, were asked to leave. Mr Perugini’s evidence was that this had occurred approximately four to six times in the previous three years.
It will be noted that there are two limbs to the definition of “road”. Within each limb there are two alternatives. There is no doubt that the access road in question fell within both alternatives of the second limb. It was a properly formed and graded road to which gravel or road metal had been added. It was plainly developed for and had, as one of its main uses, the driving of motor vehicles. The argument turned on the application of the first limb of the definition.
It is convenient to consider first what is meant by “the public” in the definition. The approach in Harrison v Hill [1932] SC (J) 13 has been adopted in many subsequent cases. That concerned a definition of “road” as “any highway and any other road to which the public has access …”. The road in question was part of a farm and led only to the farmhouse, where it terminated. There were no other houses on the land. The road was not maintained by any public authority but was maintained by the farm tenant. There was no gate at the entrance to it and no intimation that it was not open to the public. Except at times in summer when the farmer placed a pole across it to prevent the straying of cattle which were grazing in the adjoining fields, there was no obstacle to prevent the public having access to it. The road was used by the public as an access to the farm, and members of the public not having business there also frequently walked on it. They had, on several occasions, been turned off by the farmer when there were crops growing in the adjoining fields. The Lord Justice-General, Lord Clyde, said of the expression “the public”, at 16:
“I think that, when the statute speaks of “the public” in this connexion, what is meant is the public generally, and not the special class of members of the public who have occasion for business or social purposes to go to the farmhouse or to any part of the farm itself; were it otherwise, the definition might just as well have included all private roads as well as all public highways.”
It was found in that case that the public generally did have access to the private road in question without objection, unless there was any reason to believe that the persons so using it were likely to commit mischief.
The decision in Harrison v Hill was approved by the High Court in Schubert v Lee (1946) 71 CLR 589, a decision to which it will be necessary to return. In particular, the definition of “the public” adopted by Lord Clyde was approved by Debelle J in this Court in McBain v Reyne (1998) 69 SASR 580 at 599. I therefore conclude that “the public” in the definition, as applied to the evidence in this case, does not include the occupants of the houses and farm buildings, tradespersons delivering goods to or involved in the acquisition of produce from the property and other persons traversing the access road at the express invitation or with the licence of the owner or tenants of the property. Where I refer to “the public” hereafter I exclude reference to this class of people. The only other persons found to have used the access road were those few members of the public who for some reason had wandered onto the property and who, when noticed, were asked to leave.
I turn to the question whether the road was “used by the public”. As Debelle J pointed out in McBain v Reyne (supra) at 600, the expression under consideration by him in that case – “commonly used by the public” – denoted “constant and frequent use of an area by the public generally”. Wells J in Marklew v Allen (1974) 9 SASR 32 considered the same expression. He said, at 33-34:
“I point out, in passing, that that definition has a substantially factual basis: the test is whether the place was, in fact, commonly used by the public. I do not read into its language that the user must necessarily be of right, or lawful, or without occasional opposition, or objection. The test is, solely, has the place been commonly used by the public …”.
The High Court in Schubert v Lee (supra) also considered that to be a factual question. In their joint judgment Latham CJ, Rich and Dixon JJ said, at 592:
“The words “open to or used by the public” are apt to describe a factual condition consisting in any real use of the place by the public as the public – as distinct from use by licence of a particular person or only casual or occasional use.”
The question here is whether the access road in question is in fact used by the public. The definition does not now talk about “commonly used” but merely “used”. It will be difficult to conclude that it was not so used if at the relevant time it was in fact being used by members of the public, whether with or without the consent of the owner. I say “at the relevant time” because the authorities show that, under a similar definition, access or user may be periodic and thus render an area at some times a road and at other times not: see Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd [1982] 1 NSWLR 728. Whether there was use by the public is, as the High Court said in Schubert v Lee, a factual condition, a real use, as opposed to a casual or occasional use.
There is no evidence in this case that at any material time the access road was in fact being used by the public. Even the police officers on the premises at the time were there at the invitation of the appellant. There was evidence of very occasional use without the consent of the owner. In my opinion such rare casual or occasional use under those circumstances does not constitute use by the public for the purpose of the definition. In that respect the factual situation differs from that in Harrison v Hill where members of the public frequently used the road without objection. I therefore conclude that the access road was not used by the public.
The final question is therefore whether the access road was “open to” the public. The argument of the respondent was simple: there was no physical barrier; there were no signs discouraging or prohibiting entry; members of the public were free to walk or drive on the access road without restriction. The only exception was when Mr Perugini closed and locked the gate at night during the fruit picking season. I think it was conceded by the respondent that at those times the access road was not a road for the purpose of the definition.
This was not a situation where there was any invitation to the public generally or to a section of it to attend on the property such as might be the case of a privately owned hotel forecourt or a privately owned shopping centre car park. The access road was on privately owned property. At the relevant time there was a gate at the entrance from Montacute Road which could be closed, but which seldom was. Mr Perugini had an undoubted right to forbid members of the public from entering upon his land. He had the right to determine who could enter the property. For anyone to enter the property lawfully it could only be on his invitation or with his licence or with the invitation or licence of a person whom Mr Perugini had authorised to extend that invitation or licence.
In Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd (supra) at 734-735 Glass JA was considering the phrase “place open to the public” in the context of privately owned land which he contrasted with a public road. He said, at 735:
“It is axiomatic that the openness or accessibility to the public of private premises will depend upon some definition of the kind of invitation extended by the occupier to members of the public. How that invitation is to be defined to produce the result that a private place is open to the public generally and not merely a section of it is a question which should be left to be dealt with when it arises.”
In other words there must be an invitation or permission to the public before it can be said that the public has access to the area, or that the place is “open” to the public. That invitation may be express; it may be implied.
I return to what the High Court said in Schubert v Lee (supra). It is significant because the phrase in question in that case was also “open to or used by the public”, the identical phrase used in the first limb of the definition in question. I begin with the passage previously quoted. For present purposes the important part is that which follows:
“The words “open to or used by the public” are apt to describe a factual condition consisting in any real use of the place by the public as the public – as distinct from use by licence of a particular person or only casual or occasional use. It may be necessary to distinguish places open to members of the public as such from places left open by the owner but obviously intended only for the use of a particular description of person, for example, visitors to his shop or other premises. Prima facie the words of the section mean streets, &c., which actually are open to or used by the public, so that there is some need for protection of the public in the use of such streets, &c.” (Emphasis added)
The distinction noted by the members of the High Court is relevant here. It imports into the notion of being “open” to the public, in the case of private property, an element of intended permission or licence by the owner. The evidence in this case showed that, although the gate was left open, the access road was intended only for use by a very limited class of persons and not by members of the public.
The expression “open to or used by the public” is very similar to the expression used in the legislation under consideration in Harrison v Hill (any highway and any other road “to which the public has access”). Such a view was also expressed by Debelle J in McBain v Reyne (supra) at 599. In those circumstances, what Lord Clyde said in Harrison v Hill at 16 is pertinent:
“I think also that, when the statute speaks of the public having “access” to the road, what is meant is neither (at one extreme) that the public has a positive right of its own to access, nor (at the other extreme) that there exists no physical obstruction, of greater or less impenetrability, against physical access by the public; but that the public actually and legally enjoys access to it. It is, I think, a certain state of use or possession that is pointed to. There must be, as matter of fact, walking or driving by the public on the road, and such walking or driving must be lawfully performed – that is to say, must be permitted or allowed, either expressly or implicitly, by the person or persons to whom the road belongs. I include in permission or allowance the state of matters known in right of way cases as the tolerance of a proprietor. The statute cannot be supposed to have intended by public “access” such unlawful access as may be had by members of the public who trespass on the property of either individuals or corporations.”
In that passage Lord Clyde also speaks of the need for some form of permission, express or implied, before it can be said that the public has access to the road or, in this case, that the road is “open to” the public.
Is lack of a physical barrier by itself a sufficient invitation or licence? I do not think it is. The fact that the barrier or gate was there and available to be closed indicated, if nothing else, the reservation of a right on the part of the owner to exclude the public as and when he wished. However, merely because premises are open in the sense of having no physical barrier between them and a public road does not mean that the owner consents to any member of the public entering upon the land. If it were otherwise, it would follow that at any time I leave the front gate of my residence open it would constitute permission to the public generally to enter, and if the gate happened to be across the driveway which leads to my carport, my driveway would become a “road” for the purposes of the Road Traffic Act. Most people would recognise, I think, where premises are fenced along the boundary of a public road, where the only physical opening is a gateway which can be closed, and where the road or track has no other purpose than to provide access to remote parts of the premises, that the owner is intending to exercise his right to exclude persons from the premises unless they have the owner’s permission. No sign or threat is necessary. That would apply to a rural allotment in the same way as it does to an urban residential allotment.

Of course, one must be wary of stating propositions as universal rules where there may be necessary exceptions. A common situation which occurs in remote areas of this State is a road linking two towns or public areas, shown on public maps as a road, traversing freehold or leasehold land, with either gates or cattle ramps at either end or spread along the road. That, in all probability, will be a “road” as defined in the Road Traffic Act. However, that is not this case.
It follows that, in my opinion, an area such as that in question in this case is only open to the public if there is some evidence that the owner has given express or implied permission to members of the public of the relevant class to enter upon the land. There was no such evidence in this case. Accordingly, in my opinion, it was not open to the Magistrate to conclude that members of the public had access in any relevant sense to the access road in question or that it was open to the public. The Magistrate, as did the respondent in argument on the appeal, placed undue reliance on the lack of a physical barrier to the access road.
This is a factual conclusion which differs from that of the Magistrate. However, it does not involve reversing any decision on credibility or the finding of any primary facts contrary to those found by the Magistrate. My conclusion depends on inferences drawn from those primary facts which were before and which were accepted by the Magistrate. An appellate court may properly draw its own inferences from those primary facts on appeal: Warren v Coombes (1979) 142 CLR 531.
In my opinion the appellant proved, on the balance of probabilities, that the access road was neither open to nor used by the public in the relevant sense. As there was no question that it was developed for or had as one of its main uses the driving of motor vehicles, there was proof to the contrary to the allegation in the complaint that the access road was a “road”, and the complaint should have been dismissed.
It follows that the appeal must be allowed and the appellant’s convictions on counts 1 and 3 set aside.